EXTRADITION

II.48.1

EXTRADITION, the delivering up to justice of fugitive criminals by the authorities of one country or state to those of another. The term is modern, for Billot says that it was never used in France in a public act before the decree of Feb. 19, 1791; and Lawrence is unable to find it in the English version of any British treaty or in any law before the extradition act of 1870. The principles on which extradition is based are also of very recent origin. They are not found in the civil law, because they do not apply to the transfer of an accused person from one state to another having a common supreme government, and under the Roman empire there was but one supreme ruler, and the authority, whether at the place where the accused was found, or where the crime had been committed, was the same, namely, the paramount authority of the emperor. Nor does the surrender by a country of its citizens, or even of foreigners who have sought a refuge in it, relying on the right of asylum, find a place in the common law. In the collection of treaties of Barbeyrac, which extends from 1496 B. C. to Charlemagne, treaties of surrender are met with, but they relate to political matters as affecting the safety of the state, and involve high treason and sometimes other felonious crimes; but no treaties for the administration of ordinary criminal jurisprudence are mentioned. Persons who were obnoxious, or banished, or outlawed, could be surrendered under these treaties, and even up to a very recent period offenses of a political nature formed the grounds for demanding the surrender of fugitives. Treaties for the surrender of the regicides were entered into by Charles II. with Denmark (1661) and the States General (1662): and as late as 1849 the refusal on the part of Turkey to deliver up to Russia and Austria, Poles and Hungarians who had escaped into the sultan's territory, broke off all diplomatic intercourse between the porte and those nations. At the present day extradition is an instrument of justice, and not only renders punishment of crime more certain by depriving criminals of a right of asylum in a foreign country and under a different government, but indirectly prevents the commission of crime. "The necessity for extradition grows out of the fact that, except in cases specially provided for by treaty, the penal laws of one country can not operate within the jurisdiction of another," and the advantage of such arrangements is the greater and closer are the relations between two countries. Thus the policy of extradition becomes more apparent when applied to contiguous territories, such as Canada and the United States, than when applied to the United States and Turkey.

II.48.2

—As applied to the United States, extradition may be examined, 1, as between the different states of the Union, and 2, as between the United States and foreign nations.

II.48.3

—Extradition, as provided for in the constitution, is a transaction between separate and independent states, for these states are sovereign within their respective boundaries, save that portion of power which they have granted to the federal government, and are foreign to each other for all but federal purposes. (Rhode Island vs. Massachusetts, 12 Pet., 657.) The constitution says (Art. IV., §2), "A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime;" and a statute passed by congress in 1793 imposes the duty of surrender upon the executive of the state in which the accused is found, and prescribes the form in which demand shall be made for such fugitive. In the interpretation of the constitutional provision, question has arisen on the exact meaning of the words "treason, felony, or other crime." Some jurists hold that such acts only are meant as were criminal either at common law, or by the common consent of civilized nations, at the time the constitution went into effect; others include only offenses of a serious nature; while still a third view extends its operation so as to include any offense against the laws of the state or territory making the demand; and this last view is supported by the weight of judicial decisions. (See citations in Spear, Law of Extrad., p. 267.) Felonies and misdemeanors, offenses by statute and at common law, are alike within the constitutional provision, and the obligation to surrender the fugitive for an act which is made criminal by the law of the demanding state, but which is not criminal in the state upon which the demand is made, is the same as if the alleged act was a crime by the laws of both." (People vs Brady, 56 N. Y. Rep., 182, 187.) Some notable cases arose over the interpretation of this section while slavery was still in existence, Mr. Seward, when governor of New York, against the precedents of the state, refused to surrender persons charged with having stolen slaves, on the ground that the offense charged was not one recognized by common law, by the common consent of civilized nations, or by the laws of the state of New York. Nor has this difficulty passed away with the abolition of slavery; for a large proportion of the cases in which requisition for the surrender of fugitives is made, are cases of statutory offenses, and it is always possible that public opinion in one state may lead to statutes providing for crimes that would not be so regarded in another state.

II.48.4

—Should any doubt arise on this matter the practice of the courts differ. In some states it has been decided that it should be left to the courts of the state making the demand, and a case is cited in Delaware in which a fugitive was surrendered although the courts declared that the offense was only a civil trespass. (State vs. Schlemm. 4 Harrington's Rep., 577.) In New York the courts have passed upon the sufficiency of demands made upon the executive by other states, without regard to the laws of those states. But in either case such proceedings are subject to the final action of the executive, by whom alone surrender can be made.

II.48.5

—Another mooted question is, whether the executive upon whom demand is made may obey it or refuse to obey it, whether his power is discretionary or imperative. In Kentucky the federal courts have decided that the governor has no discretion in the matter, and this would seem to be the general legal opinion. In one case, however, an exception is presented. If the person demanded is in confinement or under prosecution for a breach of the laws of the state to which he has gone, the state may satisfy the demands of her own laws first. Should the executive, under any other conditions, refuse for any reason to issue a warrant for the arrest of a fugitive, there is no power that can compel him to do it.

II.48.6

—The necessary forms to secure the surrender of fugitive criminals are prescribed in the act of 1793. The accused must be indicted in the state in which the crime was committed, or a charge must be brought against him before a magistrate, who, if satisfied that the charge is true, issues a warrant for the arrest of the criminal. A copy of the indictment or affidavit is forwarded to the executive of the state, and he issues to the executive of the state to which the fugitive has gone, a requisition for his surrender. If the executive upon whom requisition is made is satisfied that the papers are regular and the proof of crime sufficient, he is required to issue a warrant for the arrest and delivery of the accused to the agent of the state making the demand. But this action of the executive is not final, for judicial proceedings may be instituted under a writ of habeas corpus, for the purpose of obtaining the discharge of the accused. "The judicial duty to release any person unlawfully arrested, on proper application made for that purpose, is imperative, no matter by what direction or command the arrest was made." The expense attending the surrender of fugitives is borne by the state making the demand.

II.48.7

—International Extradition. If a person has committed a crime and escaped to another country, what is the duty of that country? Should the person be tried by the laws of the country to which he has come, or should he be delivered up to the country whose laws he has broken? The question of the right to demand the surrender of a fugitive criminal has never been definitely determined. Grotius considered that a state is bound to make such surrender; but, on the other hand, Lord Coke contended strongly against the exercise of such power. He shows that the feeling both in England and on the continent at the time he wrote his Institutes, was that "all kingdoms were free to fugitives, and that it was the duty of kings to defend every one of the liberties of their own kingdoms, and therefore to protect them." But the greater number of jurists do not consider it as a matter of right, but prefer to base it on the ground of comity or convenience, and the universal practice now is to surrender fugitive criminals only where there is some special treaty which demands it between the two nations; and in this country power to make such a surrender is conferred upon the executive only where the United States are bound by treaty, and have a reciprocal right to claim similar surrender from the other power. But one exception to this practice has occurred in this country. In 1864, although there was no extradition treaty with Spain, Arguelles, a governor of Cuba, was delivered up to the Spanish minister under authority assumed by Mr. Seward, then secretary of state.

II.48.8

—In practice extradition treaties present two difficulties. Among different nations with different environment and temperaments, there will be found very different conceptions as to what constitutes a crime; and what is regarded as a crime under the laws of one country may not be so regarded by the laws of another. Thus, in Mohammedan countries, up to within recent times, to kill a Christian was no crime; and in Spain to distribute the Bible was until recently a capital offense. Owing to this difference in the morals and consequent legislation among nations, it is usual to enumerate in the treaty the crimes for which extradition may be demanded, and as such offenses must be recognized as crimes by the laws of both contracting nations, the enumeration differs somewhat in different treaties. In general it is mala in se and not merely mala prohibita that are so included, and extradition should apply only to every act which it is the interest of every nation to prevent or punish, and should not be extended to offenses of a local or political character. And while in practice it is customary to follow strictly such an enumeration of crimes as is contained in the treaty, and to limit extradition only to such as are named, it will be seen that some very important questions have arisen over the interpretation of such treaties. The following crimes are mentioned in the treaties between the United States and other nations: arson, assassination, assault with intent to commit murder, burglary, circulation or fabrication of counterfeit moneys, counterfeiting public bonds, stamps, marks of state and administrative authority, etc., embezzlement of the public money, embezzlement by public officers, embezzlement by persons hired or salaried, utterances of forged paper, forgery, infanticide, kidnapping, larceny of cattle or other goods and chattels of the value of twenty-five dollars (found only in the treaty with Mexico), mutiny, murder, mutilation, parricide, piracy, poisoning, rape and robbery. To this list the treaty with Peru adds bigjamy, fraudulent bankruptcy, fraudulent barratry, and severe injuries intentionally caused on rail roads, to telegraph lines, or to persons by means of explosions of mines or steam boilers.

II.48.9

—A second practical difficulty is, that the extraditing power is open to abuse, and an accused person may be wanted to answer, not for a real crime, which might be made the pretext for his surrender, but for another offense, such as one of a political nature, which the laws of the country on which demand is made may not recognize as a crime. It is a generally recognized principle among civilized nations that there can be no extradition for a political crime, though very few treaties contain an express prohibition of such a surrender. And as opinions differ in different countries on what constitutes a political crime, the surrendering nation is very properly made the judge of this question. Of the extradition treaties entered into by the United States, nineteen guard by express provision against their application to political crimes, five are silent on the matter, and one, that with the Two Sicilies, provides that "it shall not apply to offenses of a political character, unless the political offender shall also have been guilty of one of the crimes enumerated in Art. 22;" a very remarkable provision, and, says Mr. Lawrence, one the existence of which with such a state as the Two Sicilies was at that time (1855), is a sufficient condemnation of the whole system of extradition. If, then, extradition may not be had for a political offense, it would stand to reason that to prevent any abuse of the extraditing power, the accused person can be tried only on the charge on which he was surrendered, and on no other. To suppose that he can be tried for any other crime than that for which he was extradited, is to render nugatory all the provisions which confine the treaty, by naming them, to specified offenses; for under any other interpretation one government could claim a prisoner of another, for an extradition crime, and having once obtained possession of him, might try him for an offense of a political nature, for which he could not have been in the first instance extradited. It has been clearly recognized in France that any such proceedings would render extradition an instrument of injustice, and would make it operate against the general law of nations, which does not place political offenses in the category of crimes. And since 1830, a Frenchman guilty of an ordinary crime and also of a political offense, and surrendered by a foreign power, can be tried only for the ordinary crime. But if, after a reasonable length of time after acquittal, or the expiration of the penalty, he is found in the territory, he may then be brought to answer for the political offense. "As acts of extradition are not only personal to the individual who is surrendered, but state besides the fact which gives occasion to the extradition, the individual who is surrendered can be tried only on this fact. If, while the examination for the crime for which the surrender is asked is going on, proofs of a new crime for which extradition might equally be accorded appear, it is necessary that a new demand should be made." Billot, in his Traité de l'Extradition, the best work on the subject, says of this principle: "Here is a rule established as firmly as possible. It is incontestable that the tribunals can try the accused only on the facts for which the extradition has been accorded. This rule is an immediate corollary from the principle, which imposes on the judiciary power an obligation to apply the treaties of extradition—a principle which itself is a direct consequence of the higher principle of the separation of powers. The rule and the principle belong to the very organization of political societies, and must have precedence over every internal law. It is, besides, a necessary condition of the very principle of extradition. Moreover this rule and this principle have always been observed in France." (P. 308.) In no American treaty, however, is it expressly provided that the extradited individual shall not be tried for any offense other than that on which he was extradited. This omission may be due to the fact that it was supposed to be covered by the law of nations, or the dictates of common sense; or, as Mr. Lawrence suggests, because a cession of one privilege does not carry with it universal jurisdiction, nor require that such jurisdiction be expressly negatived as to everything else. But in some treaties, as we have seen, political crimes are excluded, while others declare that the accused shall not be held to answer for acts committed anterior to that for which extradition has been granted, and these provisions act as an indirect check to any abuse under the treaties. It may be added that the principle that an extradited criminal can be tried only for the crime for which he is surrendered, has been generally recognized among the states, and there have occurred cases in which the executive of a state has refused such surrender, on the ground that the crime charged was only a pretext to obtain possession of the accused, who would really be held to answer for another offense not covered by the general rules governing the surrender of fugitives. The English act of extradition (1870) has an article to the same effect.

II.48.10

—In case any complications arise under extradition treaties there can be no question as to what authority is to decide. The federal government alone is the judge of the validity of an extradition treaty, for no state has any treaty power, or any authority to enact or execute laws for the delivery of fugitive criminals to foreign governments. Treaties are international arrangements, and are subject to diplomatic or political and not judicial interpretation: and the provisions in the constitution which declare that treaties have the force of law, and which bring them within judicial cognizance, can only apply to their internal operation and can not affect foreign powers. Congress is, however, competent to make from time to time new provisions for the execution of a treaty, (acts of June 30, 1860, March 3, 1869, and June 19, 1876), and both the United States and Great Britain have been in the habit of passing laws to carry international compacts into effect; but no act of congress or of parliament could with impunity alter the terms or conditions of a treaty that had been entered into in good faith by two sovereign states. Only so far as it operates as a municipal law can it be so altered, or even repealed, as in 1798 our treaties with France were abrogated by congress. Still, the judicial function in executing the conditions of an extradition treaty are important, and act as a check upon the executive department of the government. The executive can not make a delivery until the proper magistrate has considered and acted upon the case, and over these judicial functions the president has no control. On the other hand, the judiciary can not surrender the accused, for that lies within the power of the president alone. Nor can the judiciary bind the action of the president by its judgment. In the famous Vogt case, the president disregarded the decision of the courts, and refused to surrender the prisoner; and his refusal was based upon a construction of the treaty showing that the extent to which extradition treaties apply is a question to be settled by the political department of the government. (12 Blatchford's C. C. Rep., 516.) The judge acts only for individual protection, while the executive passes judgment on the international obligation.

II.48.11

—Some other points of interest must be passed over. Such are the surrender by a nation of its own citizens; what subsequent legislation is required to make effective an extradition treaty that is not self-executing; the surrender of fugitives already convicted of crime, etc. The means of executing extradition, as prescribed by the act of 1848, require a brief notice. Application for arrest may be made before any of the justices of the supreme court, judges of the district courts of the United States, the judges of the several state courts, and the commissioners authorized to act by any of the courts of the United States. Testimony is taken before such judge or commissioner, and, if sufficient, a certified copy is sent to the secretary of state, so that a warrant may issue on the requisition of the proper authorities of the foreign government according to the stipulations of the treaty. But this evidence, to be sufficient, must be such as, according to the laws of the place where the fugitive is found, would have justified his apprehension and commitment had the offense been committed there.

II.48.12

—History. There are traces of extradition measures among the colonial governments (Winthrop's Hist. of Mass., II., 121, 126), and an extradition article was embodied in the articles of confederation, but the law of 1798 finally provided for inter state extradition, and placed the responsibility of executing it upon the executives of the states. In 1792 Mr. Jefferson, in drawing up a project to regulate the relations between the United States and the adjoining English and Spanish possessions, limited extradition to cases of murder only. This project was, however, never carried out, and two years later, in 1794, by the Jay treaty contracted between the United States and Great Britain, persons charged with murder or forgery, at that time capital crimes, might be extradited. (Art. XXVII.) But this article, besides being limited to twelve years, so as to expire in 1806, was not self-executing, and required an act of congress to be effective—which was never passed. But one case arose under that treaty, that of Jonathan Robbins, alias Nash, who was in 1799 delivered up to the English on a charge of murder, on a requisition issued by the president while the judicial proceedings were in progress (Wharton's State Trials, pp. 392-457.) The justice of such a surrender has never been conceded. But apart from some treaties providing for the surrender of deserters from foreign vessels in our ports, the United States was a party to no extradition treaty previous to that with Great Britain in 1843. In this treaty the United States and Great Britain, for the furtherance of justice and the repression of crime, agreed mutually to deliver up to each other, on proper demand and evidence, persons charged with murder or attempt to murder, piracy, arson, robbery, or forgery, committed within the jurisdiction of either, and who, having sought an asylum, may be found within the territory of the other. From 1842 to 1875 the administration of this treaty between the two countries worked smoothly. In 1874-5 it was ascertained, however, that one Lawrence, by himself and others—one of the others having been a United States official, occupying a most responsible position—had been engaged in smuggling silks on a large scale (tempted thereto, undoubtedly, by the enormous duty imposed on the importation of such merchandise); and apprehending detection and punishment, had fled the country and taken refuge in Great Britain. A deep interest was taken in this matter by certain revenue officials of the government, who had previously and disreputably been connected with certain cases of alleged violation of the revenue laws of the country, and which, under certain provisions of the so-called "moiety laws" passed in 1863 and 1867, had brought to them in the form of shares of fines and forfeitures, very considerable profits. With appetites whetted, therefore, by what they had already received, and with the expectation that, as the case developed, a sufficient number of merchant importers worth plundering would be found implicated, extraordinary efforts were instituted to arrest and convict the alleged offenders. The first steps in the furtherance of these objects were to arrest Lawrence as principal and to indict the merchants supposed to be implicated. The latter was easy, and indictments were found against some of the largest and most respectable New York merchants; but the arrest of the principal, who had fled to England, was not so easy: inasmuch as smuggling was not mentioned in the extradition treaty between Great Britain and the United States as an extraditable offense: and furthermore, as a violation of American law, it is not an offense at common law or by statute in any other or foreign country. His extradition was therefore demanded on the charge of forgery—forgery of a custom house bond and affidavit—although, as was afterward proved in court, there was no forgery, in the usual sense of the term, actually committed, the names signed being the names of purely fictitious persons. Nevertheless the pretense fully served the purpose, and Lawrence was delivered up by the British officials, who clearly had not a suspicion that anything other than forgery was involved in the demand for extradition. The whole proceeding was, however, in the nature of a trick, and as such was mean and dishonorable: for it was not forgery for which Lawrence was wanted, or for which there was originally any intent of punishing him, but for smuggling, for which he would not have been extradited by any country. Accordingly, the moment that Lawrence came into the custody of the United States authorities at New York, the United States district attorney in that city, dropping any further pretense about forgery, proposed to put him at once on trial for smuggling; or, more correctly, to proceed against him in a civil action for the recovery of $1,386,400, alleged to he unpaid duties on goods imported. Up to this point, and for months subsequent, the proceedings in reference to this extradited person do not seem to have been made the occasion of any diplomatic consideration; but on May 21, 1875, the president of the United States ordered a reference of the case to the solicitor general for examination, and, pending his report, a stay of all proceedings "except upon the charges" (i.e., forgery) "upon which the said Lawrence was extradited," was ordered. On the 16th of June following, the solicitor general submitted a report to the effect that there was nothing in the extradition treaty of 1842 which inhibited the United States from proceeding against Lawrence for offenses other than for what he had been demanded and surrendered.

II.48.13

—The next step in these proceedings was the arraignment of Lawrence by the United States district attorney of New York, before the United States circuit court, on charges of forgery, not specified in the extradition papers, and also in effect for smuggling. The counsel of Lawrence made answer for him substantially that he was not legally before the court for any such offense, inasmuch as he was not arraigned for the offense for which he had been extradited, and that an extradited offender could not be tried for an offense other than the one for which he was surrendered. The court (Benedict), however, ruled, that this question was not before it: and that it had already been made the subject of an adverse decision; and that even if such a decision had not been made, the court was not precluded from trying Lawrence for any offenses preferred by proper officers against him. "An offender," it said, "can acquire no rights by defrauding justice." "No rights accrue to the offender by flight; he remains at all times and everywhere liable to answer to the law, provided he comes within the reach of its arm."

II.48.14

—There is also another incident worth noticing in this connection. In the account of the decision transmitted by cable to the London press by the New York news agents, the court, referring to the question of its right to try Lawrence for an offense other than that for which he was extradited, is reported as saying: "The court can not regard the order of the president to the contrary, or take notice of any agreement between the English and American governments to that effect:" and this language Lord Derby, in his dispatch of April 11, 1876, quotes, as if he regarded it as authoritative. In the extradition papers pertaining to this matter, subsequently transmitted by the executive to the house of representatives, extracts only were given from the decision of Judge Benedict, and therefore the public had not the opportunity of judging whether the language above referred to and which the British government evidently accepted, was or was not used, as reported. The circumstance, however, that the state department did not transmit to congress the entire document is somewhat suggestive, and naturally prompts to an inquiry whether the then secretary of state (Mr. Fish) did not regard the publication of certain portions of Judge Benedict's opinion as a matter of doubtful expediency, and not calculated to strengthen the position of the Washington cabinet either before the country or the British government.

II.48.15

—The case here rested for nearly a year, when the United States demanded the extradition from Great Britain of one Ezra D. Winslow, a fugitive from the United States, charged with extensive forgeries and the utterance of forged paper. In answer to this demand, Lord Derby, then the British foreign secretary, in turn asked of the United States a simple guarantee, as a prerequisite to a surrender of the fugitive, that he should not, when surrendered, be tried for any offense other than the one specified in the extradition request, and for which extradition was granted; at the same time taking occasion to point out that he was restrained from making the surrender except under such conditions, in virtue of an act of parliament passed August, 1870, of which the following is the substance. "A fugitive criminal shall not be surrendered to a foreign state, unless provision is made by the law of that state, or by arrangement, that the fugitive criminal, until be has been restored, or had an opportunity of returning to her majesty's dominions, shall not be detained or tried in that foreign state for any offense committed prior to his surrender, other than the extradition crime proved by the facts on which the surrender is grounded." To this answer of Lord Derby to the American demand for the extradition of Winslow, the American secretary of state replied, that there was nothing in the original treaty which precluded the United States from trying a criminal once surrendered "for any offense other than the particular offense for which he was extradited;" but that, on the contrary, the right to do so under the treaty was fully sustained "by judicial decisions, by the practice of both governments, and by the understanding of persons most familiar with proceedings in such cases;" and finally, that Great Britain, by the act of 1870, had changed the spirit and terms of the original treaty of 1842, and without the assent of the United States had attached to it new conditions. The right to thus modify the treaty, he added, the president can not recognize.

II.48.16

—Although much correspondence on this subject subsequently passed between the two governments (see message of the president of the United States, June 10, 1876, Ex. Doc. No. 173, 1st session 44th congress), no further progress was made; neither party receding from its position. Winslow was not delivered up by the British government, and escaped prosecution, and Lawrence, after having been released on bail, was never again arraigned for prosecution. But as fugitives from justice from the United States have since been delivered up to the latter by Great Britain, and as the British law of extradition stipulates that a criminal surrendered on demand of a foreign state shall not be tried for any other than the extradition crime proved by the facts on which the surrender is granted, the inference is that the claims made by the United States in 1875-6 growing out of the Lawrence case, have been quietly abandoned as untenable.

—English Extradition. In England extradition is regulated by treaties which are made by an order in council under the extradition act of 1870. The chief provisions of this act are: 1. That a fugitive criminal shall not be surrendered for a political offense, or if he prove that his surrender has in fact been required with a view of trying him for a political offense; 2. Provision must be made that a surrendered criminal shall not be tried for any but the extradition crime, 3. Criminals accused or convicted of offenses in England shall not be surrendered in extradition until they are discharged; 4. There must be an interval of fifteen days between the committal to prison and the surrender.

II.48.19

—AUTHORITIES Spear, Law of Extradition, treats mainly of the American law on the subject; Clarke, Law of Extradition is English; Billot, Traité de l'Extradition, Fiore, L'Extradizione. See Lawrence's Wheaton, and his letters in the Albany Law Journal, 1878. A parliamentary committee made a report on extradition in 1879.

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